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Kenya Employment Act of 2007


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Kenya Employment Act of 2007 by Federation of Kenyan Employers (FKE).

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Kenya Employment Act of 2007

  2. 2. OVERVIEW OF EMPLOYMENT ACT,2007. Contents of the Act: • Preliminary • General principles • Employment Relationship • Protection of wages • Rights and Duties in Employment • Termination and dismissal • Protection of Children
  3. 3. CONTENT CONT.  Insolvency of the Employer  Employment Records  Employment Management.  Foreign Contracts of Employment  Dispute settlement procedure  Miscellaneous Provisions.
  4. 4. OBJECTIVES OF THE ACT.  To repeal the Employment Act, Cap 226,  To declare and define the rights of the employees,  To provide basic conditions of employment of employees,  To regulate employment of children, and to provide for matters connected thereto.
  5. 5. PRELIMINARY- DEFINITIONS. Child  Defined child(16), young person (16- 18)and juvenile(18) Migrant Worker  No provision Child  A person who has not attained the age of 18 years. Migrant Worker  A person who migrates to Kenya with a view to being employed by an employer and any person regularly admitted as a migrant worker. OLDACT PROVISION NEWACT PROVISION.
  6. 6. DEFINITIONS Redundancy  Did not apply to domestic servants. Probationary contract:  Not provided Redundancy  does not have an exclusion of domestic servants. (meaningall employees includingdomestic servants becomeeligible.) Probationarycontract:  A contract of employment, which is of not more than twelve months duration or part thereof ; is in writing and expressly stating it is a probationary period. OLDPROVISION NEWPROVISION
  7. 7. PRELIMINARY - APPLICATION  Excluded the armed forces and those so exclude by the Minister.  Exclude the armed forces, those excluded by the Minister after consultation by the National Labour Board.  In addition excludes employer and employer’s dependants where the dependants are the only employees in a family undertaking.  Other new terms defined include; dependent, disability, forced labour, or compulsory labour, HIV. Old Act New Act
  8. 8. 2. GENERAL PRINCIPLES  No provision  Chief’s Act Cap 128 -provided that – Able bodied males aged 18- 45 years were required to provide community work for 60 days.  Prohibition against forced labour:  work or service extracted from anyone under threat of penalty , loss of rights or privilege , not offered voluntarily by the person doing the work or service.  Include recruitment of Children for use in armed conflict OLDACT NEWACT.
  9. 9. 2.1 Discrimination in Employment.  No provision  Protection accorded through the bill of rights chapter V section 82 of the Constitution.  Prohibit discrimination on grounds of race, colour , sex , language , religion ,political, or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status.  Prohibit discrimination in recruitment ,training, promotion, terms and conditions of employment, termination and any employment matter. OLDACT. NEWACT.
  10. 10. 2.2 Discrimination in Employment.  No provision  Obligations:  Minister , labour officers and Industrial court has obligation to promote equality of opportunity and to eliminate discrimination in employment including migrant workers or family members lawfully in Kenya.  Employer to eliminate discrimination in any employment policy or practice. OLDACT NEWACT
  11. 11. 2.2 .Discrimination in Employment.  No provision  Exceptions:  Affirmative action to promote equality and eliminate discrimination.  Inherent requirement of a job.  Limited category of employment in the interest of state security.  National policy to employ a citizen. OLDACT NEWACT
  12. 12. 2.3 .Equal pay for work of equal value  No provision  Employer obliged to pay his employees equal remuneration for work of equal value.  Employee for purpose of this section to include applicant for employment and employer includes employment agency.  Burden of proof on employer to prove no discrimination.  Offence to discriminate. OLDACT. NEWACT.
  13. 13. 2.4. Sexual Harassment.  No provision  Definition:  Request for sexual intercourse, sexual contact or any form of sexual activity containing promise of preferential treatment, threat of detrimental treatment or employment status;  Use of language , visual material or show of physical behavior of sexual nature. OLDACT NEWACT.
  14. 14. Sexual Harassment.  No provision.  Obligation:  Employer with 20 or more employees to issue sexual harassment policy after consultation with the employees.  Policy statement to contain definition, declaration against the act, steps to be taken, disciplinary measures, complaint procedure and confidentiality. OLDACT NEW ACT.
  15. 15. 4.Employment Relationship  Contract of Service:  Written contract – any engagement for 6 months aggregate.  Contract of service:  Written contract – any engagement for 3 months aggregate.  Duty of employer to reduce contract into writing.  Employee to sign contract or thumb or finger print.  Where an employee is illiterate it the responsibility of employer to explain terms of the contract to the employee. OLDACT. OLDACT.
  16. 16. 4.1 Contract of Service  Employment Particulars;  No requirements in Cap 226  Employment Particulars;  The details required include the name, age, sex, job description, place of work ,commencement date and hours of work.  Remuneration scale and rate including calculation method and payment intervals. OLDACT. OLDACT.
  17. 17. 4.1 Contract of service  Employment particulars:  No particulars were required under Cap 226.  Employment particulars:  Other particulars include; leave entitlement , public holidays, sick leave, pensions and pension schemes, length of notice and any existing CBA which affect the employee.  Any assignment outside Kenya for more than 1 year the terms, currency of benefits and terms on return. OLDACT. NEWACT.
  18. 18. 4.1 Contract of Service Employment particulars;  No provision. Employment particulars;  All changes to contracts of service must be in writing.  The employment records to be maintained for 5 years after termination of employment.  Burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer. OLDACT. NEWACT.
  19. 19. 4.2 Disciplinary policy.  No provision  Provide written disciplinary policy and procedure-at least 50 employees.  Have appeal system .  Avail / accessibility of CBA.  Display statement of employee’s rights.  Offence kshs.100,000 or to 2 years imprisonment or both. OLDACT. NEWACT.
  20. 20. 4.2. Disciplinary Policy and Procedure  No provision.  Industrial Court may confirm particulars, amend particulars , substitute particulars and penalise contravention. OLDACT. NEWACT.
  21. 21. 5.PROTECTION OF WAGES. Payment, disposal and recovery of wages , allowances:  At the request of the employee payment may be made in cash or through his account.  Guarantee 4 months pay where court orders against employer in favour of a creditor. Payment , disposal and recovery of wages, allowances:  Payment in cash, account , cheque , postal order or money order.  Guarantee of employee’s 6 months salary where an employer is insolvent.  Employer not to limit employee’s disposal of wages. OLDACT. NEWACT.
  22. 22. 5.1.Payment , Disposal and recovery of wages  Employer not to limit employee’s right to disposal of wages.  General offence of kshs.100,000 fine or 3 months imprisonment. Deductions;  Same as new Act(Section 6)  Contravention of the provision is an offence punishable by fine of kshs.100,000/= , 2 years imprisonment or both. Deductions(section 19);  Repayment of loan granted by an employer deduction not to exceed 50% of the wages after other deductions. OLDACT. NEWACT.
  23. 23. 5.2. Deductions  Overall deductions not to exceed ½ of employee’s salary.  Deductions not to exceed two thirds of employee’s wages.  Employer’s duty to remit deduction when due or as instructed( fine of kshs.100,000/= or two years or both.  Employer to refund employee money deducted, pay the beneficiary from own funds and may be fined. OLDACT. NEWACT.
  24. 24. 5.3. Itemised pay statement.  No provision.  Employers duty to give a statement before or at the time of payment.  Particulars to be given include ; gross amount, the deductions and purpose thereof, amount and method of payment where parts of the amount are made in different way. OLDACT NEWACT.
  25. 25. 5.3 Itemised pay statement.  No provision.  Not to be issued to casuals , those engaged on piece or task rates or for periods of less than 6 months or those exempted by the minister.  Re-issue consolidated statement of statutory deductions every 12 months. OLDACT. NEWACT.
  26. 26. 5.2. ITEMISED PAY STATEMENT  No provision  Amount of deductions, time intervals of deductions and purpose.  Security bond for employer who is not incorporated in Kenya ,equivalent of one month pay for each employee.  Bond to be held by the minister in separate account. OLDACT. NEWACT.
  27. 27. 5.4. Death of Employee.  Wages and property to be delivered to the labour officer or DC for on ward transmission to the legal representative.  Wages and property to be given to the legal representative within 30 days.  Employer to inform the labour officer or DC of death within 7 days.  When no legal representative is available within 3 months moneys to be paid to labour officer or DC to be applied in accordance with Succession Act. OLDACT NEWACT.
  28. 28. 6. RIGHTS AND DUTIES IN EMPLOYMENT. Basic conditions of Employment:  Provided for the basic conditions of employment. Basic conditions of Employment:  Specify that the rights and duties of employment constitute basic conditions of employment.  More favourable terms in regulations , CBA, or contracts or under any law, industrial court awards supersedes the minimum conditions. OLDACT. NEWACT.
  29. 29. 6.2 . Hours of Work.  No provision  One rest day in every period of seven days.  Mainly regulated as per the regulations made under the Regulation of Wages and Conditions of Employment Act, Cap 229.  Employer to regulate hours of work of each employee.  One rest day in every period of seven days.  Regulations under Cap 229 retained and still applicable. OLDACT . NEWACT.
  30. 30. 6.3. ANNUAL LEAVE.  21 working days.  No qualification on administration.  21 working days  Qualifications; leave may be taken in two parts but employee to be availed two weeks uninterrupted.  Accrued leave to be taken within 18 months. OLDACT. NEWACT.
  31. 31. 6.4. MATERNITY LEAVE.  Female employee entitled to 2 months maternity leave and forfeiture of annual leave for that year.  No further provision.  Female employee entitled to 3 months maternity leave in addition to annual leave.  Women not to be discriminated on account of proceeding on maternity leave.  To give at least seven days notice when proceeding on leave  Medical certificate to be availed to employer. OLDACT. NEWACT.
  32. 32. 6.4. MATERNITY LEAVE. Paternity Leave  No provision Paternity Leave  Male employee eligible for two weeks paid paternity leave . OLDACT . NEWACT.
  33. 33. 6.6. SICK LEAVE.  Same  General order provides for 30 days leave with full pay and a further 15 days leave at half pay.( cap 229 regulations).  After two consecutive months service 7 days leave with full pay and a further 7 days at half pay in every period of twelve months.  General order and the other orders issued under Regulation of Wages and Conditions of Employment Act with more favourable terms to continue. OLDACT NEWACT
  34. 34. 6.7. HOUSING.  Same (though not expressly provided)  Water (section 10 of cap226).  Food (section 11)  Employers allowed to pay consolidated salary,  Provision of food and water. OLDACT. NEWACT.
  35. 35. 6.7.MEDICAL ATTENTION.  Section 12 cap 226 and the Employment Medical Treatment Rules- L.N. No.157 of 1977.  Sufficient and proper medicine and medical attendance during illness.  No liability where illness is contracted when an employee was absent without permission or self inflicted.  When free medical treatment is offered by the Government or any insurance scheme. OLDACT NEWACT.
  36. 36. 6.8 CASUAL EMPLOYMENT  A person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty four hours at a time • Same • If a casual employee works for a continuous period of six days he will be entitled to one rest day each week. • Conversion of casual employment to term contract after continuous period of not less than one month or aggregate of three months. OLDACT NEWACT
  37. 37. 6.8 CASUAL EMPLOYMENT  No further provision  A casual employee who has converted to term contract shall be entitled to all benefits under the Act after two months continuous service.  Continuous period shall include one rest day after every six days and public holiday.  Casual employee may complain to labour office and Industrial Court may vary the terms. OLDACT NEWACT
  38. 38. 7 TERMINATION OF CONTRACT OF SERVICE Probationary Contract  Not provided for in Cap 226 but in Cap 229 under regulations, but not compulsory Probationary Contract  Six months probation with a possible extension of upto six months.  No further extension after twelve months  Termination by seven days notice  Reason for termination not provided for. OLDACT NEWACT
  39. 39. 7.2 SERVICE PAY (GRATUITY)  Not provided for in Cap 226  Service pay at a rate to be prescribed for each completed year of service upon termination  Not applicable where pension, provident fund and NSSF or CBA has provision. OLDACT NEWACT
  40. 40. 7.3 TERMINATION NOTICE  Notice pay – basic salary only • Payment (all remuneration) in lieu of notice • Waiver of notice period or part thereof entitles employee to payment of remuneration equivalent to notice period waived. • Hearing before termination on grounds of misconduct, poor performance and physical incapacity OLDACT NEWACT
  41. 41. 7.3 TERMINATION NOTICE  No further provision  Employee entitled to be accompanied by a shop steward or another employee to the hearing.  Rules of natural justice to apply  Reason for termination/dismissal to be given and must be valid and fair. OLDACT NEWACT
  42. 42. 7.4 REDUNDANCY • Cap 226 S.16A • Notification to union and Labour Officer on reasons for and extent of intended redundancy. • No minimum period of notification required • No requirement for non union members to be given notice and reason of intended redundancy. • Notification to trade union where employee is a member and Labour Officer reasons for and extent of intended redundancy not less than a month before redundancy. • Where the employee is not a member of a trade union the employer notifies him personally in writing and the Labour Officer one month in advance. OLDACT NEWACT
  43. 43. 7.4 REDUNDANCY  No further provision  Minister may require employer under certain circumstances to insure employees against redundancy  No discrimination on account of being a union member when setting out terminal benefits or the process OLDACT NEWACT
  44. 44. 7.5 SUMMARY DISMISSAL  Gross misconduct S. 17 Cap 226  Custody 10 days • Employer may summarily dismiss an employee who has by his conduct fundamentally breached his obligation under the contract. • Is guilty of gross misconduct. • S.44 sub-section – Gross misconduct. • Custody 14 days. OLDACT NEWACT
  45. 45. 7.5. SUMMARY DISMISSAL.  No provision.  Employer to prove reason for dismissal and reason must be genuine.  Termination without or with less notice than the employee is entitled to is prohibited. OLDACT NEWACT.
  46. 46. 7.6. UNFAIR TERMINATION  No provision • New concept in the act. • Unfair termination prohibited . • It is unfair termination where employer fails to prove valid reason, fair reason and follow proper procedure. • Right available to an employee of at least thirteen months standing. OLDACT NEWACT.
  47. 47. 7.6 UNFAIR TERMINATION  No provision • Following reasons constitute unfair termination – Going or applying for an entitled leave, pregnancy, membership to a trade union, participation in trade union activities, holding or seeking office of a trade union, joining or withdrawal from trade union – Race, HIV status, complaint or proceeding against employer OLDACT NEWACT
  48. 48. 7.6 UNFAIR TERMINATION cont.  No Provision  Participation in lawful strike  If an employer does not act in accordance with justice and equity.  Determining whether employer acted with justice and equity takes consideration of;  Procedure adopted to reach decision OLDACT NEWACT
  49. 49. 7.6 UNFAIR TERMINATION  No provision.  Handling of an subsequent appeal  Conduct and capability of employee  Extent of employers’ compliance with statutory requirement  Employers’ previous practice  Existence of any previous warning OLDACT NEWACT
  50. 50. 7.7 RIGHT TO COMPLAIN TO LABOUR OFFICER  No further provision • Complaint of summary dismissal and unfair termination to be made within 3 months • Right is in addition to right to complain to the Industrial Court and also the right co complain of any other infringement of the employee’s statutory CBA rights. • Burden of Proof: – Unfair termination – employee – Justification for termination – employer – Right not available to probationary – employee – No representation by advocate before labour officer OLDACT NEWACT
  51. 51. 7.8 REMEDIES FOR UNFAIR TERMINATION/WRONGFUL DISMISSAL  S.15 Cap.234 – Reinstatement for wrongful dismissal  Non-compliance – fine of 2000/- per month in default  12 months “monetary wages”  Reinstatement under the same terms and conditions  Re-engagement in comparable jobs  Twelve (12) months gross wages, subject to statutory deductions OLDACT NEWACT
  52. 52. 7.9 CONSIDERATION BY LABOUR OFFICER OR INDUSTRIAL COURT  No provision • Wishes of employee • Circumstances in which termination took place • Practicability of reinstatement/re- engagement • Common law principle on specific performance • Length of service • Opportunities of securing comparable employment OLDACT NEWACT
  53. 53. 7.9 CONSIDERATION BY LABOUR OFFICER cont.  No provision • Value of severance pay • Right to press claims or any unpaid wages/expenses or other claims • Reasonable expenses incurred by employee in respect of termination • Contributory conduct of employee and failure to mitigate losses • Any compensation received e.g ex-gratia • Employee to be given certificate of service • Fine 100,000/- or six months imprisonment or both OLDACT NEWACT
  54. 54. 8. PROTECTION OF CHILDREN  Cap. 226:Protection of Women and children. • Restricted to children and protection widened • Not limited to direct child employment • Covers child assisting any other person who is paid e.g. father • For gain for other person or institution under contract of service OLDACT NEWACT
  55. 55. 8. PROTECTION OF CHILDREN  No provision  Worst forms of child labour include trafficking in children, child prostitution, debt bondage or serfdom, forced compulsory use of children in military conflicts  Use in procuring or offering child for prostitution, production of pornographic literature or performance OLDACT NEWACT
  56. 56. 8. PROTECTION OF CHILDREN cont.  No further provision • Minister may in consultation with the board declare worst forms of child labour • Labour officer can cancel or suspend contract • Employer has a right to appeal against decision of labour officer to Industrial Court within 30 days • Decision of industrial court final • An offence to continue employing a child against LO’s order OLDACT NEWACT
  57. 57. 8. PROTECTION OF CHILDREN cont.  No provision • Employment of child below 13 years prohibited • Employment of child between ages of 13-16 years other than in light work prohibited. No written contracts allowed. No work in industrial undertaking. • Contravention Kshs.100,000/- fine or 6 months jail or both • Employer to keep register of child in employment (age, date of birth, commencement and termination of employment) OLDACT NEWACT
  58. 58. 8. PROTECTION OF CHILDREN cont.  No further provision • Medical examination of child by an authorised officer • Use of a child by any person in worst forms of child labour an offence – fine Kshs.200,000/-, jail 12 months or both • Penalty in case of death and injury in addition to other penalty – fine Kshs.500,000/- jail 12 months or both • Limitation of actions under the Act – 3 years OLDACT NEWACT
  59. 59. 9. INSOLVENCY OF AN EMPLOYER  Employee to receive 4000/- • Minister may order payment to employee from NSSF where employer is insolvent and employment terminated • Debt to payable to employee include: – Wages arrears of between one to six months – Amount of notice period – Payment in lieu of leave – Basic award of compensation for unfair dismissal OLDACT NEWACT
  60. 60. 10. EMPLOYMENT RECORDS  No further provision • Employer required to keep the following records and permit authorised officer to inspect them: • Policy statement on sexual harassment • Employment particulars (ss.10&13) – Name, age and permanent address of employees – Name of employer, job description – Commencement date of employment – Form and duration of contract – Place of work, hours, remuneration, intervals of payment – When continuous employment started and other prescribed particulars OLDACT NEWACT
  61. 61. 11. EMPLOYMENT RECORDS – cont.  No further provision • Statement on disciplinary rules and changes thereon (ss.20&21) • Itemised pay statements and statutory deductions • Weekly rest days (S.27) • Annual leave entitlement, days taken and due (S.28) • Maternity leave (S.29) • Sick leave (S.30) • Particulars of accommodation provided or house allowance paid (S.31) • Food ration if applicable(S.33) • Registers of child in employment (S.61) • Records to be kept for at least 36 months OLDACT NEWACT
  62. 62. 12. EMPLOYMENT MANAGEMENT  No further provision • Applies to employer with at least 25 employees • Notification of vacancies to include – Employers full name and address – Vacant post – when created and on termination – Qualifications (minimum) – Place of work – Type of Work – Notification of terminations and abolition of post within two weeks of termination or abolition OLDACT NEWACT
  63. 63. 12. EMPLOYMENT OF MANAGEMENT cont.  No further provision  Employer to keep register of employees: • Full name, age, sex, occupation, date of employment, nationality, level of education • Annual returns of employees each calendar year. • Contravention: Fine of 100,000/- or six months in prison OLDACT NEWACT
  64. 64. PART XI – FOREIGN CONTRACTS  Penalty – Fine of Kshs.2,000/- or 12 months imprisonment  Act repeats definition in S.19 of repealed Cap.226  Penalty Kshs.200,000/- (fine) or 6 months imprisonment or both OLDACT NEWACT
  65. 65. PART XII – DISPUTE SETTLEMENT PROCUDURE  Dispute to be referred to Labour Officer, then 1st and 2nd Class Magistrate  Civil Court System  Kshs.1,000/- fine – imprisonment 3 months (S.48)  Dispute to be referred to labour officer or Industrial Court  Restrictions of labour disputes to Industrial Court only  Disputes to be filed within 3 years  General penalty kshs.50,000/- or three months imprisonment or both OLDACT NEWACT
  66. 66. PART XIII – MISCELLANEOUS PROVISIONS • Minister may make rules to implement Act • Rules to cover following areas: a) Prescribing what needs to be prescribed - Additional employment particulars (s.15) - amount to be deducted from employee’s salary - Report of death or incapacity of employee (S.24 (5) OLDACT NEWACT
  67. 67. PART XIII – MISCELLANEOUS PROVISIONS – cont. • Insurance against risk of redundancy (S.40) (3) • Light work for children (S.56) (3) and conditions in which they are employed • Additional records to be kept by employer (S.74) (1) (m) b) Housing conditions (S.31, 32) - sanitation, water supply and exemptions OLDACT NEWACT
  68. 68. PART XIII – MISCELLANEOUS PROVIONS – cont. S.92 – REPEAL OF CAP 226  Cap 226 now repealed  Same area coverage • Cap. 226 repealed • Retains provision: “Except where otherwise provided, the provisions of the Act shall be in addition to and not be in substitution for or in derogation of the provisions of any other Act” • Existing contracts to be subject to provisions of this Act OLDACT NEWACT